Nuremberg trials, and looking back upon it what was achieved literally?

Stephen Rapp: Well the expectation was that there would be accountability for these crimes

and that the other new thing beyond going after the top leaders, the top surviving leaders

which had never been done before, as Jackson said, "The law should not just stop at petty

crimes by small men. It should reach the men in great positions who by their concerted

actions set in motions evils that leave no home in the world untouched." But it also

was the idea that there was individual criminal responsibility. There had been this attitude

that international law only applied to states, and so you could maybe go to the International

Court of Justice and get a judgment against the state because it breached the treaty.

In this situation they said crimes are committed by real men. They're not committed by abstract

entities, and if you want to enforce international law, you have to punish those responsible

for the crimes. And this was a proceeding that Jackson in his opening speech said would

seek to condemn the Nazis, not by the evidence of the victors, but by the evidence of the

Nazis themselves who had been as he said "meticulous record keepers" and it was possible by their

own records to abundantly prove their responsibility for these crimes.

Marvin Kalb: Mr. Rapp, so you're involved now with a huge responsibility at the State

Department and I'm wondering what is the linkage between what we've been talking about, Nuremberg

and the trials, and your current effort to try to find some way of taking the lessons

of Nuremberg and apply them to today's search against those people responsible for crimes

against humanity?

Stephen Rapp: Well we had this period after Nuremberg of the Cold War where it was impossible

to hold anyone to account but after the end of the Cold War when we had the atrocities

in Yugoslavia and Rwanda, the world, the United Nations Security Council went back to the

Nuremberg precedence and essentially took, for instance, the provisions on crimes against

humanity from the Nuremberg Charter on which the Nazis had been charged together with the

other crimes, and put them in the statute of the International Criminal Tribunal for

Yugoslavia and for Rwanda. And so with relatively little variation, at least scenario, crimes

against humanity, we've been trying those responsible for the Rwanda genocide and the

crimes in Yugoslavia on the same law that was established at Nuremberg. And then other

courts have subsequently been created, mixed courts to try in other places and the International

Criminal Court of which we're not a member, but 114 countries are, and its law on crimes

against humanity. Again, with some additions, comes from Nuremberg.

Marvin Kalb: What then, Mr. Ambassador, are the large unanswered questions, the needs

that have to be addressed today?

Stephen Rapp: Well the need, the largest need is how you obtain state cooperation, how you

investigate get the evidence, how you arrest the people that are charged. At Nuremberg

as has been noted, there was an occupation government and Germany. The four powers had

total and complete power to do what they needed to do to arrest people, to hold the trial,

to execute them in what we've established since 1993 under the United Nations still

recognizes that this is a world of states. We have to have each state cooperate if we're

going to get what we want to do, and that creates a situation where it's often very

difficult to bring people to trial. With the Yugoslavia Tribunal it was possible by using

conditionality, by essentially countries in the former Yugoslavia couldn't move toward

the EU unless they gave up their war criminals. I mean you use that political tool and that's

made it possible for that court to arrest about 148 of its 150 fugitives. In the Rwandan

case because the genocidal government was overthrown and the accused traveled the world

and ended up in about 26 different countries, countries were willing to adhere to their

obligations under the U.N. Charter which is binding on them because it was a Security

Council Resolution and turn those folks over and send them to Arusha. Now with the International

Criminal Court they're relying on Sudan to arrest al-Bashir, their own president and

send him to The Hague. Obviously that's not going to occur. This morning the prosecutor

of the ICC, as I think everyone has heard, has indicted, or sought, to be quite precise,

sought arrest warrants. Had to go to the judges- judges are going to sit on this for three

to four weeks- but he sought arrest warrants against Muammar Gaddafi, his son, Saif, and

the head of the Secret Service, Abdul Senoussi, for crimes against humanity, persecution,

the crime that Streicher was convicted of by the way at Nuremberg. But they ask him

"Well where are you going to get cooperation?" "Well I'll seek cooperation first from the

government of Libya." Obviously impossible in the sense that the Gaddafi is the head

of Libya. On the other hand he then said but then he'd turn to the Security Council and

perhaps ask the Security Council for a resolution similar to what they did with the no-fly zone

that might authorize international forces to go in and get an arrest. That's never been

done. Whether countries are ready to do that is still a very, very open question. But the

point is it's very difficult to enforce these measures and to the extent that now in the

ICC you have 14 people indicted, and only five of them that have been arrested, this

creates the perception that maybe you can do the crime and get away with it.

Marvin Kalb: Do you think, Professor, that the issue of genocide is a very large one

with this community and probably all over the world today. The Ambassador has just spelled

out, I think very eloquently, the problems involved in trying really to establish a smoothly

functioning international criminal system that will deal with the issue of genocide.

Do you believe that in the next, what, 10, 20, 50 years we're going to have an international

system in place that would allow for an International Criminal Court that everyone would subscribe

to?

Jonathon Bush: No one would have believed that the immovable fact of the post-war half

century would have changed and in the aftermath of the end of the Cold War the idea that there's

a court at all, that there are a bunch of courts, is remarkable. Whether it will go

farther, I mean, I don't take odds. I have-- just this week one of my oldest defendants,

and I was the junior-most lawyer on the case, got convicted, Demjanjuk. He was when I went

to the Justice Department the case was already five years old. This is 30 years now. I don't--

I have Holocaust survivors in my family, none of them feel particularly vindicated- whether

their story was told because this old man is convicted and the judge announced how terrible

it was but he would be-- he's under house release. I don't know that the international

process is all that it's built up to be. Whether it will be in effect, I don't know, but the

idea that one Cambodian has been convicted in all these years, and a pretty nasty guy

is still in power. You know the mid-level former Khmer Rouge is sort of smiling at the

process and making sure it never reaches him or his loved ones, I don't know. I don't think

it's just if the process only went farther and we had more tribunals reaching farther

it would be better.

Stephen Rapp: Let me just add because obviously in Cambodia they are about ready to begin

in June, the trial of the four surviving leaders of the Pol Pot government. Killed two million

of their own people. Tried to take their country back to year zero including the number two

person under Pol Pot and the titular Chief of State, the Foreign Minister and his wife,

the Social Welfare Minister. They'll be on trial. I mean what's- I tend to be more optimistic

though, whether we will have everyone in the ICC I think that's something you could question.

But part of the principle of the ICC is that justice needs to be done somewhere at the

local level, even at the regional level. And the ICC only is involved if there's no will

or capacity at those lower levels. And I think we're seeing them. I'm traveling all over.

Just in Bangladesh they're trying people for the 1971 atrocities that killed three million

in Bangladesh. Everywhere when folks see a Milosevic brought to trial, when they see

a Charles Taylor brought to trial, when they see these cases where victims are receiving

justice they say "Is our blood not red? Is what happened to our people insignificant

in the world?" And so there's a demand for justice and an effort to fulfill that justice.

If not at the international level, at a regional or national level and I think that pressure

will continue. And even if people- you'll have situations where people will be tried

in countries other than their own potentially- when they try to seek refuge- and so I think

that we're moving toward a system, a hybridized one, that will I think send a message that

if you commit crimes like genocide, you'll face consequences.

Audience Question: The clip that we saw at the beginning, it made a grandiose statement

about justice but occasionally the U.S. has to hesitate before accusing countries of crimes.

For example, in the post-war period the United States picked and chose which Nazis to prosecute.

Some of the Nazis were useful to us for scientific or intelligence reasons. And at other times

we have to worry about our allies or we use these people because they're enemies or were

enemies. Can you comment on the realities of these choices that the United States has

to make?

Stephen Rapp: I just want to jump in there as a prosecutor because it's clear I always

found people who would come in and say "Why am I being charged? There's somebody else

down the road that you didn't charge." That's never a defense. It's the case that's before

the court: whether this person did the crime and they should face consequences for it.

Obviously there's a lot to answer for during the recent history and some of those countries

that we're allied with. In Latin American countries people that allied on our side in

the Cold War, who then committed atrocities against their own people, are facing consequences

now because of amnesties from the '70s and '80s are being lifted so justice is being

done. But I will say that going forward in the future as we deal with policy and as we

deal with allies in the world, this question about whether we're supporting bad guys or

we're doing horrible things is something that's in front of us all the time, and I think that

as we've discovered during the spring in the Arab countries that allying ourselves with

folks that are committing human rights violations may not in the end be a wise strategy; that

indeed the best strategy is to work with people that don't commit atrocities.

Marvin Kalb: Ambassador, if you have a 30-second or so concluding thought that you'd like to

leave us with

Stephen Rapp: I saw it in Sierra Leone that when we prosecuted those that were the responsible

for these horrible atrocities, that the situation in terms of the rape, the killings, dramatically

fell and that they were able then to go through elections without lethal violence, change

power, and people had a chance to build their country back. And so I actually do think that

holding people to account can break this cycle of impunity and make it possible for people

to live freely.